The Attorney General told Thursday High Court Hearing that Attorney-at-Law Darren Wade’s efforts to invoke sections of the Fundamental Rights provisions of Guyana’s constitution in relation to the Haitians are flawed, because they only apply to citizens of Guyana and other Commonwealth member states as well as other persons who are listed under Article 47.
Mr. Nandlall said Haiti is not one of those territories. “These persons are aliens under the constitutions,” Nandlall added. The Attorney General said Haiti has not signed onto the free movement aspect of the Caribbean Community (CARICOM) Single Market and Economy (CSME).
However, in commenting on the matter Opposition Shadow Minister for Foreign Affairs, Amanza Walton Desir pointed out that "on 11th January 2019, President Granger signed "Immigration Order 2019" amending Part B, Schedule 1 to the Principal Act, to insert Haiti as a CARICOM Member State whose nationals "Shall be permitted by an immigration officer to enter and remain in Guyana, either for a definite or indefinite period," subject to the caveats under Cap.14:02 of the Immigration Act of the Laws of Guyana.
In July 2018, at the 39th Regular meeting of the Conference of Heads of Government of the Caribbean Community held in Montego Bay, Jamaica, Haiti signed on to the CARICOM Protocol on Contingent Rights, which covers the rights of persons moving to another country under the free movement of skills regime, as well as the spouses and dependents of those who move to another country.
Secretary-General Ambassador Irwin LaRocque told a press briefing in Montego Bay, in July 2018, that CARICOM's Office of the General Counsel produced legal opinions defending the right of Haitians to move freely within CARICOM.
He said "Based on the law set out in (Shanique) Myrie v The State of Barbados, and on the fact that the Republic of Haiti is a party to the Revised Treaty, and in the absence of a reservation by Haiti excluding participation in the CARICOM Single Market and Economy (CSME), it was advised that Haitian nationals, as Community nationals, are entitled to an automatic stay of six months."
The Office of the General Counsel also noted that Heads of Government in 2007 decided that all CARICOM nationals should be allowed automatic entry, in a push to enhance their sense of belonging and community. Entry would only be denied if citizens were deemed undesirable and if they were likely to be a burden on the public purse.
In yet another legal opinion, the Office of the CARICOM General Counsel in response to a Grenada position that "Haiti did not participate in the negotiation of the Revised Treaty of Chaguaramas (RTC), and so was not listed in Article 3 of the Treaty because it was not a signatory, stated that Haiti lawfully signed and ratified the RTC. It continued, "Haiti, as a party to the original treaty/first version of the treaty, was entitled on the basis of Article 40(3) of the Vienna Convention on the Law of Treaties to become a party to the Revised Treaty/amended or revised version of the treaty."
Haiti signed on to the Revised Treaty and became a full member of CARICOM on July 2, 2002, with provisional membership from July 4, 1998.
Guyana’s Opposition Leader Joseph Harmon, on Friday wrote to CARICOM’s Chairman Dr. Ralph Gonsalves outlining the plight of the 26 Haitians who were legally landed in that country on November 7, and are being denied their rights by the Irfaan Ali administration under the CARICOM Revised Treaty of Chaguaramas.
“The basis for their continued detention remains unclear as the Government of Guyana has been unable to proffer a single credible reason for this action. Statements in the local media attributed to the Minister of Home Affairs, suggests that our Haitian brothers and sisters were either perpetrators or victims of human trafficking. We have seen no evidence in this regard, but we are aware that five persons who were arrested by local authorities in connection with this matter, were released without charge,” Harmon told the CARICOM Chairman.
“These CARICOM Nationals are being detained in what appears to be inhumane conditions and have been denied the opportunity to retain legal representation. We, like other nationals of the Caribbean Community have watched in dismay at the treatment being meted out to our CARICOM brethren, while noting that the Ali Administration has not engaged with nationals from neighbouring Brazil and Venezuela as well as Cuba, in so heinous a manner,” The Opposition Leader said.
Harmon observed “with much distress, the conspicuous absence of CARICOM from the public discourse….as this matter challenges the foundational tenets of regional integration.”
In light of this the Guyana Opposition Leader invited Dr. Gonsalves as CARICOM Chairman to declare the regional organization’s “position on this matter, as it is one which if left unaddressed, could establish a precedent that is inimical to the free movement of CARICOM Nationals within the Community.”
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